GOVERNMENT BY BALLOT 


ARIZONA CONSTITUTION—INITIATIVE, 
REFERENDUM, AND RECALL 


It is the old contest between idealism and stubborn, matter- 
of-fact reality. It is the story of the philosopher’s stone over 
again—the dream of transmuting all the metals into gold—the 
hunt for the master key that will open all locks, however dif¬ 
ferent in size and shape—the problem of fitting square pegs into 
round holes—the puzzle of how to eat one’s cake and have it—• 
the search for the chimera of perpetual motion—the quest for 
the mythical pot of gold at the foot of the rainbow—and all the 
other impossible undertakings which have vexed men’s souls 
and turned their brains and filled the lunatic asylums since 
mankind was divided into those who see facts and those who 
see visions. 


SPEECH 

OP 

HOK GEORGE SUTHERLAND 

It 

OF UTAH 


IN THE 


SENATE OF THE UNITED STATES 


JULY 11, 1911 



1436—10171 


WASHINGTON 

1911 









SPEECH 

OB' 

IION, GEORGE SUTHERLAND. 


The Senate having under consideration the joint resolution (H. J. Res. 
14) to admit the Territories of New Mexico and Arizona as States into 
the Union upon an equal footing with the original States— 

Mr. SUTHERLAND said: 

Mr. Pkesident : During the last few years the United States 
of America has become the field of operation for an amiable 
band of insurgent soothsayers, who have been going up and 
down the land indulging in cabalistic utterances respecting 
the initiative, the referendum, the recall, and divers and sun¬ 
dry other ingenious devices for realizing the millenium by the 
ready and simple method of voting it out of its present state of 
incubation. They direct our attention to the clouds flying above 
the far western horizon, upon which the flaming Anger of the 
Oregon sun has traced, in radiant and opalescent tints, glowing 
pathways and shining minarets, stately temples and castles and 
palaces, pinnacles of gold and caves of purple, and they tell us 
that these are the visible signs which mark the exact location 
of the new and improved political Jerusalem, where the wicked 
officeholders cease from troubling and the weary voters do all 
the work. They bid us join them in an airy pilgriniage to this 
scene of pure delight, and assure us that here, high above all 
selflsh and mundane things, is the land “ flowing with milk and 
honey,” where every bird is a songster, where the exquisite 
and perfect flowers of political purity are in perpetual bloom, 
where “ every prospect pleases ” and only the “ standpatter ” is 
vile, where all the laws are perfect and corruption and wicked¬ 
ness are forgotten legends. 

A good many people are accepting the invitation, without, tak¬ 
ing the precaution to secure return tickets. 

As an humble observer of this spectacular enterprise I have 
thought it worth while to interrupt the somewhat monotonous 
consideration of the reciprocity bill long enough to suggest some 
reasons for anticipating the abrupt and inevitable return of 
these hopeful aeronauts to the solid earth after these alluring 
visions shall have faded into the damp and ghostly fog, the cold 
1436—10171 , 3 



4 


and unsubstantial mist, of ^YbicIl they are composed, and into 
which certain enthusiastic hut irresponsible “ balloonatics ” have 
carried them in a balloon all gas and no ballast. 

The conditions to which I have thus briefly alluded find a 
striking illustration in the proposed constitution of Arizona, 
which is now before the Senate for consideration. There has 
been more or less controversy respecting the precfse authority 
of Congress in dealing with the proposed constitutions of Ari¬ 
zona and New Mexico. It has been broadly asserted that the 
only authority of Congress is to determine whether or not these 
proposed constitutions establish a government republican in 
form and contain certain provisi-ons •definitely specified by the 
enabling act. The so-called New Mexico-Arizona enabling act 
provides that— 

When said constitution and such provisions thereof as have been 
separately submitted shall have been duly ratified by the people, 
* * * a certified copy of the same shall be submitted to the Presi¬ 
dent * * * and to Pongress for approval. * * ♦ And if Con¬ 
gress and the President approve said constitution and the separate 
provisions thereof, if any, or if the President approves the same and 
Congress fails to disapprove the same during the next regular session 
thereof, then and in that event the President shall certify said facts 
to the governor, * * ♦ who shall, within 30 days after the re¬ 
ceipt of said notification, ♦ * * issue his proclamation for the 

election of the State and county officers— 

And so on. 

Before either New Mexico or Arizona is entitled to admission, 
four distinct steps are required: 

1. The framing of the constitution and its submission to a 
vote of the people of the State. 

2. The adoption of the constitution by a majority vote of the 
people. 

3. The approval of the constitution by the President; and 

4. The failure of Congress to disapprove the same at the next 
regular session after the approval of the President. 

Neither the authority of the President nor of Congress in 
passing upon this question is limited by any language in the 
enabling act. In terms their power to apiirove or disapprove 
is as broad as that of the people in voting upon the question 
of the ratification or rejection of the proposed constitution. 
If the President’s authority is limked, it is not because of 
anything in the enabling act, but from the fact that the power 
to admit new States is one belonging to Congress, which can 
not be delegated by that body to the President, and it may 
be well contended that while Congress could delegate to the 
President the power to determine the existence of a fact—as, for 
143G—10171 


5 


example, that the constitution provided for a government repub¬ 
lican in form and contained certain specified provisions upon 
the existence of which the admission of the State should depend— 
Congress could not delegate the power to admit or decline to 
admit the State at his discretion. However this may be so far 
as the President is concerned, no such limitation attaches to the 
power of Congress. 

The Senate Committee on Territories, reporting the bill to 
enable the people of Arizona and New Mexico to form consti- 
tions, after calling attention to the provision— 

That the President and Congress, representing the Nation, shall re¬ 
view the constitutions of the proposed new States which the Nation is 
about to admit as a portion of its governing and lawmaking elements—- 

And to the further fact— 

that the Nation is interested as vitally in the form of government of 
the States which it creates as are the new States themselves— 

Said: 

It is not only a measure of justice, but a measure of safety which 
will certainly prevent any unsound or harmful provisions in the consti¬ 
tutions of the proposed new States. This, of course, will be beneficial 
to the proposed new States as well as to the Nation. 

Clearly, then, it was contemplated that the responsibility of 
Congress in the matter should attach to every part of the con¬ 
stitutions, because the power is to be exercised so as to “ pre¬ 
vent any unsound or harmful provisions in the proposed consti¬ 
tutions.” 

This was the view of the Senator from Indiana, Mr. Bev¬ 
eridge, chairman of the committee, who said that by this re¬ 
quirement there was— 

afforded a safeguard as to the wisdom of its provisions. A constitu¬ 
tion is no light thing. It can net hurt anybody to have a constitution 
carefully drawn; it may help wonderfully to have it reviewed. It 
is sure to be not less thoughtful on that account. Also, the Nation is 
as much concerned as the State, for the State is to become a part of 
the governing power of the Nation. 

In the consideration of either of these constitutions, therefore, 
the entire instrument is before us, and if upon the whole it is of 
such character or contain such provisions that Congress should 
not approve, it is the plain duty of that body to disapprove. 
We shall not, of course, disapprove for light or trivial reasons, 
but if there is contained in either constitution provisions which 
we believe to be radically wrong or subversive of the principles 
of good government, I conceive it to be our plain duty under 
the enabling act to so declare. 

Complaints have been made respecting both the proposed 
constitutions of New Mexico and Arizona. The principal ob- 
143G—10171 


6 


jection to the New IMexico constitution is that the power of 
amendment is not sufficiently elastic; that amendments will be 
too difficult to obtain. With that criticism I am unable to 
agree. It seems to me that the proposed constitution of New 
Mexico, like that of Arizona, may be justly criticized for ignor¬ 
ing the principle that constitutions are made to declare and 
establish fundamental law as distinguished from ordinary legis¬ 
lation. Both constitutions exhibit an unfortunate tendency to 
deal overmuch with mere details which should have been left 
to legislation. That, however, is an incident with which we 
should not, I think, undertake to deal. Legislative acts should 
be capable of being readily changed to suit the sometimes rap¬ 
idly changing needs of the community, but constitutions are, 
or should be, declarations of the permanent, settled, broadly 
fundamental policies of the State, not to be lightly altered 
upon the mere caprice of the moment, but only after the most 
serious and deliberate consideration. 

Prof. Stimson admirably states the distinction, as follows: 

The Constitution is the permanent will of the people; the law is 
but the temporary act of their representatives, who have only such 
power as the people choose to give them. 

If the Constitution of the United States had provided for 
its own amendment as easily as some few of the State con¬ 
stitutions provide, that great instrument would long, since 
have become a medley of incongruous provisions and a patch- 
work of the shifting foibles of every genera-tion. A written 
constitution means nothing unless it means stability and per¬ 
manency. It is the fundamental law, the foumlatioii upon 
which rests the whole superstructure of the State; and, like 
the foundation of a great building, the continual tearing out 
of a stone here and the insertion of another there will threaten 
the integrity of the whole structure. To call a constitution 
which may change with every shifting breath of popular emo¬ 
tion “ fundamental law ” is a perversion of language. Such a 
constitution is not to be likened to the foundation of an edifice, 
but rather to the weathercock upon the steeple, that simply 
registers the direction of each passing breeze. 

The objections to the New Mexico constitution, compared 
with the Arizona constitution, are not, to my mind, of a serious 
character, and I shall not spend further time in their dis¬ 
cussion, but confine myself to the Arizona constitution; and in¬ 
asmuch as the features of that instrument which seem to me 
objectionable are illustrative of what I conceive to be an un¬ 
wise, dangerous, and growing tendency toward the gradual 

breaking down of the American system of government through- 
1436—10171 


7 


out the country, I shall discuss the subject in a somewhat gen¬ 
eral way. I am .aware of the fact that it is not fashionable 
to find fault with any of the new-fangled political fads which 
are being rather intemperately advocated under the claim of 
restoring a government by the people. Anjmne who doubts the 
wisdom of the initiative and referendum, the recall, or the direct 
primary is at once set down by certain self-constituted guard¬ 
ians of the people’s rights as a “ reactionary ” or a “ stand¬ 
patter,” and only those who accept the whole program from 
prologue to epilogue are considered worthy to be called 
progressive. 

Somebody has defined a standpatter as a man who has 
stopped and can not start and a progressive as one who has 
started and can not stop. If these definitions are to be ac¬ 
cepted as accurate, sensible people w’ill avoid both schools. It 
would seem to be the part of wisdom to delay starting at least 
long enough to ascertain where we are going and why, and then 
to keep going as long as we are headed in the right direction, 
and to stop whenever we discover that we have lost our bear¬ 
ings. Movement and improvement are not always synonymous 
terms. Just now* there is a good deal of political and social 
unrest, not only among our own people, but throughout the 
world. That there is justification for much of the dissatisfac¬ 
tion which exists can probably not be truthfully denied. The 
conditions, however, which have given rise to this feeling call 
for sane, wise, level-headed counsel and consideration. But 
instead of these the agitator is abroad and confusion of thought 
results. Evils exist as they have always existed. Many reme¬ 
dies are being suggested, some of them good, some of them 
foolish, many of them utterly vicious and impracticable. There 
are quacks in politics as there are quacks in medicine, and in 
the one case as in the other, the quack is usually identified by 
the superabundance of the laudation with which he advertises 
himself and his remedies. 

The value of a remedy in politics, as in medicine, is to be 
determined by its efficiency as a curative, and not by the name 
which its compounders have caused to be blown into the bottle 
or the promises which they have made in their advertising cir¬ 
culars. Between the political quack, who thinks only of him¬ 
self, and the political zealot, who does not think at all, we are 
in grave danger of having all the stability and sanity ground 
out of our institutions. What we need, in my judgment, is not so 
much the adoption of new, experimental—not to say dangerous— 
panaceas for the ills of the body politic, as the conscientious and 
vigorous enforcement of the old and proven remedies. 

1436—10171 


8 


Sir, we are living in strennons days. Everybody seems to be 
afflicted in one form or another with the speed mania. We are 
not content to jog along in the old family carriage after the 
comfortable manner of our fathers; we must hurl ourselves 
through the land in high-power automobiles, dividing the popu¬ 
lation into the “ quick and the dead ” as we pass. The stage¬ 
coach has been relegated to the scrap heap, and the Twentieth 
Century Limited has taken its place. The post office has fallen 
into more or less disuse, and we are carrying on our corre¬ 
spondence over the telegraph wires by night lettergrams and 
day lettergrams. The housewife no longer shops with market 
basket upon her arm; she telephones the grocer and adds the 
bill for both telephones to the cost of living. To do everything 
more qnicklj^ to travel faster and faster is the growing obses¬ 
sion of the times, and we are eagerly looking forward to the 
day when we shall fly through the air without the encumbrance 
of a gasoline tank, drawing propulsive power as we go from 
the electric waves which fill the universe with the mysterious 
energy of their rise and fall. The microbe of restlessness has 
invaded not only our social but our business and political life 
as well. We are no longer satisfied to lay by a modest com¬ 
petency for our old age by j'ears of thrift and economy. We 
must get rich over night by betting on the price of wheat. 
Houses are no longer built from the foundation up, brick upon 
brick and stone uixni stone. Tremendous steel frames, 10, 20, 
40 stories in height, are elevated by the aid of steam and crane, 
and bricks are laid and windows put in upon every floor at the 
same time. The roof is fastened on before the cellar is finished. 
It is not strang^i that in the universal fever of haste govern¬ 
ment itself should be swept by this mad spirit of impatience, 
which has given rise to the new apostle of reform, whose de¬ 
mand is that we shall abandon the methodical habits of the 
past and go careering after novel and untried things. The 
speed limit has been taken off, the “ stop, look, and listen ” sign 
removed, and the importunate cry is, “ Full speed ahead! Get 
somewhere else than where you are—it matters not where— 
only, in God’s name, let it be quickly! ” 

Changes in governmental forms are advocated apparently for 
the mere sake of change. So many strange and doubtful experi¬ 
ments are being undertaken that we shall end by finding our¬ 
selves overwhelmed by their very multiplicity and impracti¬ 
cability, _ The minds of the people are being filled with all sorts 
of idealistic theories, beautiful in promise but ineffective in 
performance. Every self-constituted reformer brings to the 

quilting bee his favorite patch, and when the work shall be com- 
1436—10171 


9 


pleted our sclieme of government will be as bizarre as the old- 
fashioned crazy quilt of onr grandmothers. It is high time for 
a reaction to that ancient but discredited common sense which 
thinks before it acts instead of repenting afterwards. 

It is one of the penalties of advancing civilization that the 
feet of progress must sometimes go through the mire before they 
can plant themselves on the firm upland. That man is the 
truest pilot whose keen vision soonest makes out the direction 
in which the upland lies and, in safety rather than in haste, 
leads us to it, and he but a false pilot or an arrant knave, what¬ 
soever he may call himself or howsoever loudly he may anathe¬ 
matize the mire, if he but lead us, however swiftlj^ round and 
round the vicious circle within the swamp. The problems with 
which we have to deal are full of perplexity and complexity. 
They can not be solved by a simple wave of the hand in a mo¬ 
ment of time, by hysterical denunciation, by the undigested the¬ 
ories of the visionary and the dreamer, by the self-serving 
mouthings of the demagogue, or by the mere counting of heads 
at the ballot box. They call for thoroughgoing investigation, 
dispassionate consideration, w'ise statesmanship, and sometimes 
for that courageous patience which moves deliberately in the 
face of clamorous demands to make haste. There is overmuch 
waving of flags and beating of drums and blowing of horns. 
The voice of the 'professional reformer is heard in the land in¬ 
sistently calling upon us to forsake the ancient and well-beaten 
paths along which we have proceeded,, at least in security, for a 
century and a quarter and go headlong in new and unexplored 
directions, luckily to find ourselves in pleasant fields and firm 
footing or unluckily plunged over the precipice or engulfed in 
the dismal swamp. 

The so-called popular-government propaganda has for its 
ostensible object the broadening and strengthening of power in 
the hands of the people, but its tendency is to emasculate and 
ultimately destroy representative government. Its adherents 
in their enthusiasm have advocated what seem, to me some very 
wild and visionary schemes, admirably calculated to inflame 
the popular imagination, but which, however much they may 
increase the direct participation of the multitude in the affairs 
of government, will, I am persuaded, give them not a better 
but a far less eflicient and desirable government than they now 
have. I do not mean to say that I am opposed to every sug¬ 
gested alteration in the existing governmental framework. To 
oppose a new thing simply because it is new is quite as bad as 
to insist upon change'merely because it is change. 

1436—10171 


10 


But I am opposed to the initiative, the modern referendum, 
and the recall, because I believe that if these innovations shall 
be generally put into practice the inevitable result will be the 
gradual breaking down of the strength and the ultimate de¬ 
struction of our republican institutions, under which for a hun¬ 
dred and twenty-four years we have steadily advanced in popu¬ 
lation, wealth, and civilization, until we are to-day not only the 
greatest nation in the world, but the greatest that the sun has 
ever looked upon in all his shining course. In saying this I 
am not opposing any honest effort to eradicate the evils which 
exist under this form of government. There is a vital distinc¬ 
tion, however, between a had plan of government and the im¬ 
perfect operation of a good plan. If legislation by representa¬ 
tive bodies is sometimes unsatisfactory, inadequate, or corrupt, 
it is not because the plan of representative government is at 
fault, but because, although inherently good, it is badly admin¬ 
istered. 

INIr. President, I am no standpatter. I am not in favor of 
standing still. No one who takes the slightest thought desires 
that we shall do that. Of course, we must advance, but we must 
at our peril distinguish between real progress and what amounts 
to a mere manifestation of the speed mania. Among the games 
of the ancient Greeks there was a running match in which each 
participant carried a lighted torch. The prize was awarded not 
to that one who crossed the line first, but to him who crossed 
the line first with his torch still burning. It is important that 
we should advance, but the vital thing is not that we should 
simply get somewhere—anywhere—quickly, but that we should 
arrive at a definite goal with the torch of sanity and safety 
still ablaze. 

Our present form of representative government, under which 
laws are made by specially chosen legislators, construed by 
specially chosen and trained judges, and enforced by specially 
chosen executive officers, I am firmly convinced is the only 
practicable form of government for a country of immense area 
and great population such as ours. Whenever it proves ineffective 
or works badly the fault is not with the machinery, but with 
those who are operating it. The remedy is not for the people 
en masse to attempt to manipulate the complicated and deli¬ 
cately adjusted mechanism, which must inevitably lead to con¬ 
fusion and disaster, but to exercise more care in the selection 
of their specially chosen operating agents. 

Everybody will agree that the average man is not as intelli- 
• gent, as able, or as honest as the ablest, or the most intelli- 
1436—10171 


11 


gent, or the most honest. The individual fallibility of the 
average man will at once be conceded, but there are some people 
who seem to imagine that there is some mysterious virtue in 
mere numbers; that 10 men are necessarily more intelligent, 
more moral, and more honest than 1 man; that by adding to¬ 
gether a thousand individuals, none of whom has ever gone 
beyond the multiplication table, some strange and weird trans¬ 
mutation results by which the combined mass is enabled to 
work out the most difficult problem in Euclid with the utmost 
accuracy. Thus, following out this highly intelligent theory, 
whenever one is anxious to have a message carried with the 
greatest haste from one part of the city to another, obviously 
the thing to do is emploj^ not the fleetest messenger boy in the 
service, but arrange with 10 or a dozen average boys to unionize 
the job. 

The distinguished Senator from Oregon [Mr. Bourne] is per¬ 
haps the greatest living exponent of this doctrine. Ilis recipe, 
roughly stated, I understand to be this: Take the voices of 10 
foolish men, 20 ordinary men, 5 rascals, 16 good citizens, and 
3 wise men (if any such can be induced to join) ; mix them 
all up together, with the result, vox populi, vox Dei. It was 
in some such flash of inspired wisdom that the learned Senator, 
in the course of a speech delivered in this Chamber a few 
weeks ago, presenting to us his now well-known and justly 
celebrated “composite citizen,” said: 

The people can he trusted. The composite citizen knows more and 
acts from higher motives than any single individual, however great, 
experienced, or well developed. While selfishness is usually dominant in 
the individual, it is minimized in the composite citizen. 

AVitli growing confidence in this child of his creative genius, 
he next declares—evidently as the result of mature reflection, 
because the declaration constitutes one of the capitalized head¬ 
ings with which in his editorial capacity he has thoughtfully 
adorned his speech—that the 

“ CO.MrOSITE CITIZEN IS UNSELFISH.” 

The Senator immediately proceeds under this caption to tell 
us how the gratifying transformation from distributive selfish¬ 
ness to collective altruism is brought about by a process as in¬ 
teresting as it is ingenious. I quote again: 

The composite citizen is made up of millions of individuals, each 
dominated in most cases by selfish interest. But because of the differ¬ 
ence in the personal equations of the individual units making up the 
composite citizen there is a corresponding difference in the interests 
dominating said units. 

Mr. President, let me pause long enough here to say that' 
this is not a quotation from Herbert Spencer, though quite 
143G—10171 


12 


as lucid and convincing as anything that learned philosopher 
ever wrote. But listen further : 

And while composite action is taking place, friction is developed, 
attrition results, selfishness is worn away, and general welfare is sub¬ 
stituted before action is accomplished. 

I am unable to accept the frivolous suggestion advanced by s 

some that this beautiful conception has been evolved from an 
oveiAvorked and hysterical inner consciousness; that friction 
and attrition can scarcely be expected to exercise an intelligent 
choice; and that what little general welfare there is in the 
combination to begin with is quite as likely to be worn away as 
selfishness. Solomon has told us that a fool may be brayed in 
a mortar with a pestle and his foolishness will not depart from 
him, but it evidently never occurred to that wisest of men that 
the result might have been far different if he had submitted a 
large number of fools to the process at that critical period 
wliUe composite action teas talcing place. By a parity of reason¬ 
ing a selfish citizen may be brayed in a mortar with a pestle and 
his selfishness will not depart from him, but contrariwise with 
a million selfish citizens. This aggregate selfishness may be 
entirely eradicated we are told, and general welfare—altruistic 
and delightful—wholly substituted by the simple application of 
friction and attrition while composite action is taking place. 

There are those who might become impatient if the process of 
regeneration should not become complete until the culmination 
of composite action, and so the learned Senator assures us 
“ that general welfare is substituted before action is accom¬ 
plished.” 

Mr. President, this is comforting as far as it goes, but I could 
wish—not for my own sake, but for others—that the informa¬ 
tion were a little more definite respecting the exact stage of 
the process at which selfishness retires and general welfare 
appears on deck. Otherwise there will remain in the minds of 
some a not altogether unjustified apprehension that the attend¬ 
ant friction and attrition may become more or less tedious 
pending the arrival of general welfare, should the otherwise 
joyous process of composite action be unduly prolonged. But. 

Mr. President, shall we stop here? If we may rid ourselves of 
selfishness by this comparatively easy and inexpensive method, 
surely other human frailties and shortcomings may be eradi¬ 
cated in like manner. “ While composite action is taking place ” 
let “ friction and attrition ” exert their benign and regenerative 
power to rid us of ignorance and egotism and class hatred, 

and at least modify in some degree the tendency toward a some- 
1436—10171 


13 


wbat exasperating “ holier than thon ” attitude, which, I fear, 
is growing upon some of the disciples of my honored friend, 
though he remains, God be praised, wholly unspoiled by any 
such unfortunate tendency himself. 

But, Mr. President, in spite of all the distinguished Senator 
from Oregon has said, certain of the unregenerate seem to re¬ 
gard the “ composite citizen ” as being somewhat oversiiturated 
with the irresponsible idealism of the Oregon school of govern¬ 
ment by ballot. At least one has confessed to a feeling of skep¬ 
ticism respecting even his bodily existence, in spite of the fact 
that the honorable Senator has privately assured him that this 
child of his creative genius is actually in our midst, albeit so 
spiritually refined and so delicately illumined by the infiuence 
of the modern uplift that only the sensitive eye of the faithful 
may behold him, or the hand of the faithful touch him. To 
the unregenerate he reveals himself only to the ear as a 
“ voice crying in the wilderness,” proclaiming the wickedness 
and folly of the entire order of things established. 

When the fullness of the new dispensation shall be upon us, 
it will be made clear that any scheme of things which has en¬ 
dured for a period exceeding six months and which has only 
the poor merit of having worked fairly well in practice is in¬ 
herently worthless as a guide to the conduct of advanced people. 
In short, the “ composite citizen ” holds to the doctrine that 
mere experience i-s an ass and that common sense is outlawed by 
the statute of limitations. Legislatures are to be swallowed up 
in the initiative and referendum, courts obliterated by the re¬ 
call, political parties juggled out of existence by the direct pri¬ 
mary, and uix)n their ruins will rise the recently organized 
Progressive,League—which, by the way, just now seems to be 
progressing after the manner of a woman getting oif a car, 
with its back to the front—as the supreme guide, philosopher, 
and friend of the “ comi)osite citizen,” whose offices its members 
will continue to joyously fill and whose salaries they will con¬ 
tinue to cheerfully draw. Then, indeed, will the political mil- 
lenium be in sight. Every social and political evil will be eradi¬ 
cated by the simple but effective expedient of voting it out of 
existence. 

All the operations of government—lawmaking, law constru¬ 
ing, law executing—will be merged in the one supreme, all- 
embracing function of balloting. We may confidently look 
forward to that halcyon era when there will be primary elec¬ 
tions to nominate candidates for office, preprimary elections to 
designate persons to become candidates for nomination, and 
1430—10171 


14 


antepreprimaries to frame an eligible list from which to select 
preprimary candidates to run the gauntlet of the primary it¬ 
self, to the end that only the good and virtuous may compete 
for the final suffrages of the people. Having selected our can¬ 
didates by this sifting and resifting and reresifting series of 
primary elections, we will have election elections to determine 
who of these irreproachable persons shall become our officials, 
and then recall elections to get rid of them if we think on reflec¬ 
tion that some undesirable material has slipped through a hole 
in the sieve. There will be elections to select lawmakers and 
elections to make laws for them; elections to select judges to 
construe laws and elections to determine whether we like the 
way they construe them; elections for men to execute the laws 
and elections to execute the executors if they do not execute 
to suit us. Mr. President, we can not have too much of a good 
thing. The “ composite citizen,” bearing upon his shield the 
inspiring device— 

Count that day lost whose low descending sun 

Views at thy hands no uplift voting done—■ 

will unanimously and hilariously go into perpetual action. 
With nothing to do but feed and clothe a family of six or eight 
or ten hearty, growing children, the “ composite citizen ” will 
have no difficulty in snatching a few months of time here and 
there during the year to devote to these duties of progressive 
citizenship, and his spare moments can be utilized in reading, 
studying, digesting, and perhaps understanding a few volumes 
of proposed initiative and referendum legislation. 

The “ composite citizen,” under the soothing influence of 
“ friction and attrition,” “ while composite action is taking 
place,” will embody all the virtues but none of the vices of the 
multitude from which he is compounded. An aggregate of more 
or less wise and more or less foolish, of more or less good and 
more or less bad, of more or less strong and more or less w’eak 
human atoms, he will himself be all wise, all good, all powerful. 
He will be the just man made perfect and the unjust man made 
perfect also. 

I have been consulting the dictionary. Mr. Webster, whose 
vocabulary covered the ivliole linguistic field from which my 
honored friend from Oregon culls only the flowers, abruptly 
introduces the matter, as was his discursive habit, between two 
other wholly unrelated subjects, and treating the w^ord “com¬ 
posite” as a botanical term, defines it thus: “Belonging to the 
order compositw; bearing involucrate heads of many small 

florets, as”—the comparison is not mine, but that of the 
1436—10171 


V 


15 

learned lexicographer—“ as, for example, the daisy.” The 
speech of the Senator from Oregon had prepared us to agree 
with Mr. Webster that his “ composite citizen ” was a “ daisy,” 
but we were in no mood for this sinister qualification, “bear¬ 
ing involucrate heads.” After these glowing eulogies from the 
eloquent lips of the Senator to which we had listened, after 
these unqualified indorsements respecting the yirtue, the un¬ 
selfishness, the wisdom—ah, Mr. President! above all, the 
wisdom—of this paragon, must there finally creep into our hearts 
the foul suspicion that, after all, the “ composite citizen ” has 
something serious the matter with his head? Involucrate 
heads! Uarrihile dictu! The subject becomes painful. Let 
us inquire no further, but for better or worse, accept this crea¬ 
tion of the inspired intellect of our honored friend simply as 
a “ daisy with an involucrate head,” and, closing the dictionary 
with all its brutal and disturbing bluntness of speech, volun¬ 
tarily leave ourselves shrouded in deep, but merciful, ignorance 
respecting the exact nature of the affliction. 

Mr. President, my objection to the initiative and the recall is 
wdthout qualification. My objection to the referendum is not to 
that method as applied from the beginning in this country to 
the ratification or rejection of fundamental law or as applied to 
broad questions of public policy. What I object to is not its 
continued historical application, but its proposed hysterical 
extension to matters of general and detailed legislation. The 
Arizona constitution, so far as it refers to the referendum, pro¬ 
vides that either the legislature or 5 per cent of the qualified 
electors may order the submission to the people at the polls of 
any measure or item, section, or part of any measure enacted 
by the legislature, except certain emergency laws, which are 
enumerated. 

It is wise and proper that before a proposed constitution or 
constitutional amendment should go into effect it be adopted by 
a vote of the people. The constitution of a State contains the 
broad, underlying principles within the limits of which the va¬ 
rious representative agencies of the people must act. The 
sovereign power rests only in the people and they alone should 
lay down the general principles according to which their repre¬ 
sentatives shall act and establish the boundaries beyond which 
they may not go ; but under these principles and within these 
boundaries there is a mass of detailed work to be done that 
requires the continuous and sustained effort of somebody in 
order that it may be done well. The people as a whole have 
neither the inclination, the specialized training, nor the time 
1436—10171 


7 




16 

requisite to enable them to master the thousand and one details 
necessary to qualify them to wisely discharge the functions of 
ordinary legislation. Men talk about the right of the people to 
make their own laws for their own goyernment, and it tickles 
the fancy as a very high and noble sentiment, as it is, but it is 
a vain and idle performance to talk about the right to do a 
thing against the doing of which insuperable difficulties exist. 
To declare a general policy is a comparatively simple thing; to 
contrive the legislative machinery necessary to make the policy 
effective may be and often is an exceedingly complex and diffi¬ 
cult task.' 

It is one thing to know that an evil exists and denounce it. 
It is quite another thing to put your finger on the cause of it, 
and still another to devise a remedy. After a late dinner you 
may have perfectly competent “ inside information ” that some¬ 
thing has gone wrong, but be altogether unable to determine 
whether it was the wine or the cigar, the hot bird or the lobster 
salad, the olives or the pate de foie gras. In such case you do 
not submit the matter to a referendum of the neighbors. You 
send for the doctor. All men, for example, may heartily agree 
as to the wisdom of regulating common carriers so as to insure 
fair and nondiscriminating treatment of all shippers and pas¬ 
sengers, and the exaction of only fair and reasonable charges 
for services rendered. But, that much declared, we are only at 
the threshold of the difficulty. How shall it be done? What 
machinery shall be provided? There may be scores of divergent 
plans proposed. These are to be analyzed, compared, and con¬ 
trasted, and in the end harmonized. There must be deliberate 
and intelligent interchange of views, the yielding of a detail 
here, the acceptance of a change there, amendment, and com¬ 
promise. Such a process may call for weeks or months of 
laborious study, of careful sifting of conflicting claims as to law 
and fact, for technical knowledge, for investigation and thor¬ 
ough understanding of the preexisting legislation upon the sub¬ 
ject. When all this is done and the law referred to the people 
to be adopted or rejected, how many will fit themselves to pass 
upon the question intelligently? Knowing that the law is to 
be submitted to the people, there will be a feeling on the part 
of the legislators that they have no responsible voice in the 
matter, but that the responsibility rests upon the shoulders of 
the electorate. Inevitably the same care in framing the pro¬ 
posed law will not be taken as where the final responsibility of 
enacting it into an enduring statute rests ultimately and alone 
upon the legislature itself. If an objectionable provision is 
found in the proposed law no method will exist, and in the 
1436—10171 


17 


very nature of tilings none can be devised by which the objec¬ 
tionable provision can be eliminated at the polls. There will be 
no choice but to adopt the bad provision for the sake of the 
good or to reject the good provision for the sake of avoiding 
the bad. 

And so one great objection to applying the referendum to 
matters of general legislation is that, however desirable or how¬ 
ever imperative the need may be, no opportunity is afforded 
for mutual concession, or compromise of conflicting views, and 
amendment. 

The weakening effect of the referendum upon the fltness and 
responsibility of the legislature was forcibly stated by Mr. 
Justice Johnson in the case of Johnson v. Rich (9 Barb,, 6SG), 
where it wms said: 

I regard it as an unwise and unsound policy, calculated to lead to 
loose and improvident legislation and to take away from tlie legislator 
all just sense of his high and enduring responsibility to his constitu¬ 
ents and to posterity by shifting that responsibility upon others. Ex¬ 
perience has always shown that laws passed in this manner are seldom 
permanent, but are changed the moment the instrument under which 
they are ratified has abated or reversed its current. Of all the evils 
which afflict a State, that of unstable and capricious legislation is among 
the greatest. 

In the case of Barto v. Himrod (8 N. Y., 483, 49G), Mr. Jus¬ 
tice Willard, speaking upon the same subject, no less wisely and 
forcibly said: 

If this mode of legislation is permitted and becomes general, it will 
soon bring to a close the whole system of representative government, 
which has been so justly our pride. The legislature will become an ir¬ 
responsible cabal, too timid to assume the respousibility of lawgivers, 
and with just wisdom enough to devise subtile schemes of imposture to 
mislead the people. All the checks against improvident legislation will 
be swept away, and the character of the Constitution will be radically 
changed. 

The population of a State is not homogeneous throughout the 
State. There are, for example, sections devoted to agriculture, 
others to mining, others to manufacture, others to cattle and 
sheep raising, and so on. There is the division of our popula¬ 
tion between the groat cities and the country. The advantage of 
the representative plan of legislation is that representatives are 
elected from these various sections so widely differing in their 
manner of living, in their habits of thought, and in their material 
interests. In the legislative assembly all these are represented, 
their views and interests heard and considered. In shaping 
laws of general application light is shed from all directions, 
the question is considered from every angle of vision. In the 
143G—10171-2 



18 


ease of direct legislation tlie inhabitants of a city may look at 
a question in one way, those of the country in another. Farm¬ 
ing sections may have one view, mining sections another, and 
manufacturing sections still another. If the city vote largely 
predominates in a State, it is the city view which is likely to 
prevail. If the rural Tote predominates, it is the view of the 
country which will probably prevail, and legislation is more 
apt to reflect class interest and class prejudice than where con¬ 
sideration is given in a deliberative body where the views of all 
may be fairlj^ and fully considered and harmonized. 

A government of the people in a territory of vast extent, of 
large population, and of great and increasing diversity of pur¬ 
suits and interests, can be administered only by a system of 
representation. It is almost as impossible for the people en 
masse under such circumstances to directly perform the various 
functions of government as it is for the human body in its 
entirety to perform the functions of the heart or the brain 
or the lungs. In a primitive state of society the one may be done, 
as in the most primitive forms of life the other may be done, 
but as society becomes complex and as the forms of animal life 
become complex special organs to discharge special functions 
are necessary. 

Mr. Woodrow Wilson, in his very valuable book; “ Constitu¬ 
tional Government in the United States,” has expressed the 
thought clearlj^ and forcefully. He says: 

A government must have organs; it can not act inorganically by ' 
masses. It must have a lawmaking body ; it can no more make law 
through its voters than it can make law through its newspapers. 

Thus spoke the president of Princeton University, in the days 
of his tranquillity, before the microbe of political ambition had 
invaded his system. 

That this view does not seem to be shared by the governor 
of New Jersey is one of the peculiarities of human psychology 
which I do not attempt to explain. I can only say that I pre¬ 
fer the calm, reflective judgment of the college president to the 
fevered hallucinations of the hopeful presidential candidate. 
Those who indorse his later utterances, reversing the ancient 
epigram, are simply appealing from Philip sober to Philip drunk. 

Those who favor the initiative and referendum are in the 
habit of referring to the Swiss experiment with those methods. 

If it should be conceded—as it by no means can be—that the 
initiative and referendum are successful in Switzerland, the 
conditions in that country differ so radically from conditions 
here that it does not follow that they would be successful in 
the United States. 

1436—10171 


19 


The Cantons in Switzerland are small in area and in popula¬ 
tion. The people are essentially homogeneous and conservative. 
Their legislative needs are few and simple. None of the legis¬ 
lative checks which exist under our system of government exist 
there. There is no executive veto, no judicial power of setting 
aside unconstitutional law, and there is only a single legislative 
chamber in each of the Cantons. But even under these condi¬ 
tions thoughtful men who have investigated the matter agree 
that more harm than good has resulted from their employment. 

Mr. Wilson, already quoted, has given the subject very thor¬ 
ough and careful investigation. Speaking of the referendum, he 
says: 

Where it has been employed it has not promised either progress or 
enlightenment, leading rather to doubtful experiments and to reaction¬ 
ary displays of prejudice than to really useful legislation. 

He refers to the fact that in the Cantons of Zurich and Berne 
it led to the abolishment of wise health regulations; that in 
Federal legislation it was used only to aim a blow at the Jews 
under the guise of a law forbidding the slaughter of animals 
by bleeding. He says : 

The vote upon most measures submitted to the ballot is usually very 
light; there is not much popular discussion, and the referendum by no 
means creates that quick interest in affairs which its originators had 
hoped to see it excite. It has dulled the sense of responsibility among 
legislators without in fact quickening the people to the exercise of any 
real control in affairs. 

If it has thus failed in the comparatively simple affairs of 
small Switzerland, how much more dismal must be the failure 
in this country, with its vast and complex affairs. 

The experience of every State in the Union where the refer¬ 
endum is in force, even as to constitutional amendments, is 
that, notwithstanding the comparative simplicity of the ques¬ 
tions submitted, only about one-half or two-thirds of the peo¬ 
ple voting for candidates cast their votes for or against the 
proposed amendments. The remainder, from ignorance or in¬ 
difference, do not attempt to pass upon the questions at all, 
and even of those voting it is safe to assume that no very large 
proportion have really taken the time to study and understand 
the questions submitted. I know from my own observation 
that of the persons who vote one way or the other many vote 
against proposed constitutional amendments because they have 
not taken the trouble to inform themselves as to the mei-its, 
and, on the other hand, many others vote for the amendments 
without understanding them and wholly on the strength of 
143G—10171 


20 


somebody’s statement that they are all right. In a recent elec¬ 
tion held in South Dakota 13 proix)sed laws were submitted to 
the people under the referendum and every one of them was 
rejected at the polls, not because they were all bad, but because, 
as I am informed upon high authority, the mass of the people 
would not take the trouble to distinguish between the good 
and the bad, but voted against them all in utter disgust at the 
unwelcome task which they had been called upon to i>erform. 

Attention has sometimes been called to the fact that direct 
legislation by the people is not a new thing. The New England 
town meeting has been cited as a ease in point, but in these 
mass assemblies the people met face to face. There was oppor¬ 
tunity for an interchange of opinion, for discussion, for the 
retinmg influence of deliberation and amendment. Those who, 
upon the one hand, favored the law, and those who, upon the 
other hand, opposed it, presented their views and assumed the 
responsibility for them. 

This did not differ greatly from the process now in operation 
under our representative form of government, where the people, 
being so numerous that they can no longer meet and exchange 
their opinions, delegate their authority to agents, who assemble 
and publicly discuss their views, openly assume responsibility 
for them, and pass laws after full opportunity for discussion 
and amendment. The secrecy and the limitations of the ballot 
box are a poor substitute for these open and thoroughgoing 
methods. 

In Mr. Wilson’s work on “ Constitutional Government in the 
United States,” from which I have already (luoted, he illustrates 
the difference between the judgment which men arrive at after 
a real interchange of views such as takes place in a deliberative 
assembly and the judgment which is likely to result under the 
initiative and referendum. He says: 

Common counsel is not aggregate counsel. It is not a sum in addi¬ 
tion, counting heads. It is compounded out of many viev/s in actual 
contact; is a living thing made out of the vital substance of many 
minds, many personalities, many experiences; and it can be made up 
only by the vital contacts of actual conference, only in face-to-face 
debate, only by word of mouth and the direct clash of mind with mind. 

All the objections which apply to the modern referendum 
apply with increased force to the initiative; and, in addition, 
there is the further objection that the proposed law is not even 
framed by any deliberative or responsible body. Under the 
Arizona constitution 10 per cent of the qualified electors are 
given the right to propose any measure and 15 per cent the 
right to propose any amendment to the constitution. A more 
1436—10171 


p 


21 

sweeping and comprehensive repudiation of representative legis¬ 
lation could not well be imagined. Apparently the constitu¬ 
tional convention realized that perhaps they had gone too far, 
and so it was provided that initiative and referendum laws 
should not transcend the constitution. This provision itself 
shows the confusion of mind under which the framers labored, 
because to provide that an initiative law shall not transcend 
the constitution is of little avail when the constitution itself 
may be altered by an initiative amendment with equal ease and 
simplicity. Here there are no limitations, and therefore legis¬ 
lation of any character may be as readily tacked on to the con¬ 
stitution in the form of an amendment as it may be passed in 
the shape of ordinary law. 

Under the initiative as thus providetl proposed laws will, of 
course, frequently be elrafted by a coterie or clique of interested 
persons, perhaps all of one way of thinking. It will not be con¬ 
sidered and debated in public as legislative enactments are; 
there will be little, if any, opportunity for the consideration of 
opposing views in framing the law. The power of compromise, 
which is a necessity in the making of laws, will be wholly ab¬ 
sent. There are certain radical reformers who decry all com¬ 
promise as being a partial yielding to wrong. They recognize 
no middle ground and demand that we shall stand for the 
right without yielding the breadth of a hair. 

But this is a mere begging of the question. Right and wrong 
in governmental matters are not always, indeed, not generally, 
divided by any sharp line which will enable us to put our finger 
upon one side and say this is exactly right and upon the other 
and say this is utterly wrong. The boundary between the two 
is a doubtful zone in which the extent of the uncertainty gradu¬ 
ally diminishes as we proceed outwardly in either direction, 
until upon the one side we reach the clear field of indisputable 
right and upon the other of unmistakable wrong. But it is pre¬ 
cisely in this middle ground of uncertainty—where honest peo¬ 
ple differ—that the deliberate interchange of conflicting opinion 
is necessary and the. legislative function finds its field of great¬ 
est activity, and it is precisely here that the initiative would 
most signally fail, because the proposed law would be framed, 
not by those who see the situation from different angles, but by 
, those who all occupy the same point of view. It is not difficult 
to obtain signatures to any petition, and the initiative petition 
will constitute no exception to the rule. Given an active, ener¬ 
getic, self-constituted committee, and 10 per cent of the voters 
of the State can be readily obtained to sign petitions proposing 
143G—10171 


22 


any kind of a law that anybody will want. Those who sign 
the petition—at least 10 per cent of the voters of the State- 
will be committed to it in advance; its sponsors will be active in 
advocating it; “what is everybody’s business is nobody’s busi¬ 
ness,” and in all likelihood, after the novelty of the system 
'has worn off, interest will largely disappear and very few peo¬ 
ple will be found who will take the trouble to combat even a 
foolish or bad provision. A very large proportion of the voters 
will refrain from voting at all upon the question, and under 
these conditions, with active and interested work done in behalf 
of the law and a half-hearted opposition, or none at all, the 
chances are altogether in favor of the adoption of more unwise 
laws than ever get through our legislatures. 

In Oregon at the last election 32 laws were submitted, either 
under the initiative or the referendum provision of the constitu¬ 
tion. These proposed laws, together with a few brief and 
meager arguments in favor of and against some of them, are 
contained in a pamphlet covering 202 closely printed pages, to 
be studied, digested, and thoroughly understood before intelli¬ 
gent action could be had, presenting to the people, busy with 
their own affairs, a most difficult, perplexing, and burdensome 
task; a task which, in the very nature of things, must have 
been performed by the great majority in the most perfunctory 
manner or not at all. These laws are upon all sorts of sub¬ 
jects. There is a bill prohibiting the taking of fish from the 
waters of Rogue River, which would seem to be a police regula¬ 
tion affecting a limited part of the State and with which the 
people in remote sections would not be sufficiently concerned to 
give the subject very laborious consideration. There are a 
number of bills to create new counties, to allow certain counties 
to pay additional salaries to their judges, of which the same 
may be said. Either at this election or a preceding one this 
somewhat peculiar situation was brought about In the lower 
part of the Columbia River salmon fishing is carried on by 
means of nets; in the upper part by means of fish wheels. That, 
as I understand, is due to the current. In the lower part of 
the river the current is comparatively slight, while in the up¬ 
per part of the river the current is much stronger. The 
net fishermen, being opposed to the wheels, proposed a law 
under the initiative prohibiting all fishing by wheels. The 
wheel fishermen, being opposed to net fishing, proposed a law 
prohibiting the taking of fish with nets. The matter being sub¬ 
mitted to the wise and discriminating “ composite citizenship ” 
of that State, both laws were adopted by good round majorities, 
1436—10171 


23 


with the amiable result that thereby the taking of salmon by 
any effective method was prohibited altogether. 

A law proposing to compel railroad companies to give free 
passes to all public officials received nearly 30,000 votes out of 
a total of less than 90,000. 

A bill to create a “ board of people’s inspectors ” was gravely 
submitted under the initiative by the People’s Power League 
of Oregon, .the board to consist of three persons to be selected 
in the first instance in the following highly popular manner. 
The executive committee of the State grange, the executive 
committee of the Oregon State Federation of Labor, and the 
presidents of the boards of trade and commercial organizations 
of Oregon were each to name three persons, and from each of 
these groups the govei'nor was to select one for appointment. 
The people generally Avere not to be consulted. The “ composite 
citizen ” was notified to go on a A’acation. It was made the 
duty of this board of censors “ to have at least one of their 
number present at all times at every session of each house of 
the legislative assembly, and to be watchful for any defect or 
imperfection in the State and local systems of government.” 
They were to watch the public officers and public institutions, 
the departments of the State and county and municipal govern¬ 
ments, and to inA"estigate and report 'on their management. 
They were imposing upon them a pretty large contract. 
All this was to be done, the proposed law naively provided, 
“ without motive or desire for personal or partisan advantage.” 
They were, moreover, “ to be as fair and impartial to all citi¬ 
zens and officers as the supreme court seeks to be between 
parties to a suit.” “ As the supreme court seeks to be ” is dis¬ 
tinctly good. What the supreme court merely sought the cen¬ 
sors for the people were bound under the mandate of the law 
to actually find and put into practical operation. They were 
to publish an official gazette not only of their oAvn reports but 
also of any criticisms or complaints of their own official acts. 
These criticisms, however, under the law, are thoughtfully 
limited to not exceeding 200 words each; their own reports are 
to be without limit. 

Reports by the governor, county officials, mayors of cities 
are to be published, but all of these are to be “ brief and compre¬ 
hensive.” If they can not be made comprehensive without sac¬ 
rificing brevity, we are not enlightened as to what shall be 
done. They are also to publish in this gazette a large number 
of other specific matters, and, finally, “ other matters that they 
believe will promote the general welfare.” Apparently there 
are to be no canvassing agents for this publication, the law 
1436—10171 



24 


airecting that every registered voter 'U’ho is either the head of 
a family or a member of no family shall be considered a sub¬ 
scriber, and the gazette mailed to him at public expense. The 
inhabitants of the benighted regions outside of Oregon must pay 
$1 a year in advance. It will be observed that every provision 
is made whereby the censors will watch everybody else and 
report their lapses, peccadillos, and shortcomings to the people, 
but, unhappily, no provision is made for watching or reporting 
upon the censors themselves. This unique piece of legislation, 
it must be borne in mind, was not proposed as a joke. The 
People’s Power League of Oregon were as solemn about it as 
the Senator from Oregon has been in pointing out the virtues 
of the “ composite citizen.” Thirty thousand people in the State 
of Oregon voted for it, or considerably more than one-third of 
all those voting. A change of 11,000 votes would have carried 
it. When the State becomes truly progressive it probably will 
be carried. In the meantime the “ composite citizen ” must 
censor for himself. 

The People’s Power League, however, proposed another law, 
which was adopted by a small majority, namely, the law pro¬ 
viding for the election of delegates of the several political 
parties to their respective national conventions, every delegate 
so elected being entitled to receive from the State treasury 
the amount of his traveling expenses necessarily spent in at¬ 
tending the convention, not to exceed ^200. Hereafter when 
any group of enterprising gentlemen may desire a pleasure trip 
at the public exi>ense, all they will need to do will be to organize 
a party, call a national convention, and elect themselves dele¬ 
gates. 

I should not like to suggest that any of these visionary 
schemes are being advocated by anybody from motives of self- 
interest, and yet that sort of thing sometimes happens in this 
cold and selfish world. I remember hearing of an individual 
who appeared before the common council of a certain city and 
in a fiery speech denounced a proposed ordinance restricting the 
speed of automobiles within the city limits as being a tyrannical 
and unwarranted invasion of the personal rights of the citizen. 
A councilman asked the objector how many automobiles he 
owned, to which he replied: “ I don’t own any. I’m an under¬ 
taker.” 

The excuse for the adoption of the initiative and referendum 
is that the people can no longer trust their representatives; 
that legislatures will not obey the popular will; that they are 
dishonest and corrupt and controlled by the interests. The 
143G—10171 



I 


25 

initiative and referendum, therefore, proceeds upon the obvious 
fallacy that a democracy which has not the wisdom or the 
inclination to select honest and capable men to make laws can 
wisely perform the infinitely more complex and delicate func¬ 
tion of making the laws directly. It would follow, I supix)se, 
that any man who is incapable of selecting a competent phy¬ 
sician would be thoroughly qualified to heal himself. The en¬ 
during basis of representative government is that it affords the 
opportunity for the whole people to select from among them¬ 
selves those who can govern for them better than the people, 
because of their vast number and their other duties, can govern 
for themselves. For a people to confess their inability to do 
this is only short of confessing an inability to govern at all. 
Under the initiative and referendum it is not proposed to do 
away with our legislators; they are to continue. If, knowing 
that our legislators adopt laws for us in their final form, we 
still can not select capable men for the office, our inability will 
be intensified under the power to initiate laws for ourselves. 
If power is reserved by the people to pass a law which the 
legislature ignores, or to veto a law which the legislature passes, 
it will be argued the consequences of having dishonest or in¬ 
capable legislators are not so serious, the need of care will 
not be so great, and the use of care in the selection of repre¬ 
sentatives will constantly diminish. 

The referendum in the past has been confined to the adoption 
of organic law, and this has served to accentuate the vital 
difference between the constitution and ordinary legislation. If 
the referendum shall be applied to the making of law generally, 
the people will inevitably lose the high regard which they now 
have for their constitutions, and in the end the distinction be¬ 
tween the organic law of the State and ordinary legislation 
will disappear. Constitutions are made not only for the pur¬ 
pose of confining the representative agents of the people within 
definite boundaries, but also for the purpose of preventing 
hasty, ill-considered, and unjust action on the part of the ma¬ 
jority of the people themselves. The written constitution is 
the shelter and the bulwark of what might otherwise be a help¬ 
less minority. Tyranny is no less hateful in the hands of the 
people than in the hands of the despot, and the oppression of 
the minority by the majority is tyranny no less than is the 
arbitrary oppression of the king. The forward march of de¬ 
mocracy will be of little avail if in the end it rescue us from 
the absolutism of the king only to baud us over to the abso¬ 
lutism of the majority. And so we provide that the govern- 
143G—10171 


26 


ment shall be administered by representatives who are to act 
not for a part of the people, but for all, thereby, in a sense, ex¬ 
pressing our distrust in the hastily formed opinions of the tem¬ 
porary majority, but declaring our lasting confidence in the 
wisdom and the justice of the persistent majority. The de¬ 
mand for direct legislation by the people ignores this distinction 
and violates, if not the letter at least the spirit, of this con¬ 
stitutional compact. 

It is the recall provision of the Arizona constitution, however, 
which, to my mind, is fraught with the greatest mischief. That 
provision, briefiy stated, is that every elective officer in the 
State of Arizona is subject to recall by the qualified electors of 
the electoral district from which he was elected whenever such 
recall is demanded by a petition signed by electors equal to 25 
per cent of the votes cast at the last preceding general election. 

The grounds upon which the recall is based must be stated in 
not more than 200 words. The ofiicer is given the alternative of 
resigning his office within five days after the filing of the peti¬ 
tion. If he does not resign, a special election must be held not 
less than 20 nor more than 30 days after the making of an 
order to that effect. The reasons given in the petition for de¬ 
manding the recall are to be set forth in the ballots, together 
with the officer’s justification in not more than 200 words. 
Other candidates for the office may be nominated, to be voted 
for at said election, and the candidate receiving the highest 
number of Azotes shall be declared elected for the remainder of 
the term. No recall petition shall be circulated until the officer 
has held his office for a period of six months, except as to mem¬ 
bers of the legislature, in which case a petition may be circu¬ 
lated at any time after five days from the beginning of the first 
session following his election. After one recall petition and elec¬ 
tion, further petitions may be circulated and further recall elec¬ 
tions held if the petitioners shall pay into the public treasury 
the expenses of the preceding election. 

The power of^recall, it is seen, includes all officials—legisla¬ 
tive, executive, and judicial. Attempts have been made to show 
that the recall is not a new thing in this country, and we are 
referred to Article V of the Articles of Confederation, which re¬ 
served to each State the power to recall its delegates at any 
time within the year for which they were appointed and to send 
others in their place for the remainder of the year. Passing by 
the distinction between an officer elected by the people and a 
mere delegate appointed by a State t© represent its interests in 
what was little more than a general conA-ention, it is sufficient 
1436—10171 


2T 


to say that the whole scheme of the Confederation was found to 
be so utterly ineffective that it was abandoned at the end of a 
few years, and the enduring National Government which we 
now have put into its place. The framers of the Federal Con¬ 
stitution evidently regarded the recall feature of the Confedera¬ 
tion as an unwise precedent to follow, and it found no place in 
that great instrument, as for more than 100 years the ballot-box 
recall found no place in the plan of government of any State. 

The inevitable tendency of the recall will be to give us a set 
of weak and spineless executive and legislative officials, no 
longer having the courage or the inclination to act upon their 
own initiative and responsibility, but with their ears always 
to the ground to catch the first indication of the popular drift 
in order to anticipate it. They will soon cease to distinguish 
between the settled, deliberate judgment of the people to which 
they should yield a willing obedience, and the passing whim 
of the moment, against which the ultimate best good of society 
may demand the assertion of a sturdy opposition. Such a pro¬ 
vision, I firmly believe, is more likely to result in the recall of 
good officials than of bad ones, because the time-serving, un¬ 
scrupulous politician will be swift to conform his action to 
every shifting opinion of his constituents, while the official of 
honesty and integrity and courage, who prefers his duty to his 
office, will stand for what he believes to be right and sound and 
wise, even though for the time being he may stand alone. It 
has happened very often that the governor of a State or the 
mayor of a city has incurred the violent opposition of a tem¬ 
porary majority by the announcement of a policy which, when 
put into operation, has been found to work to the advantage 
and upbuilding of the community. With the recall in existence, 
such an officer would have been swept out of office in response 
to a spasmodic impulse, afterwards found to be wholly un¬ 
warranted. It is far better in the long run that our public 
officials be permitted to serve out the short terms for which 
they are elected, unless they so conduct themselves as to be¬ 
come amenable to removal by impeachment or by punishment 
under specific provisions of law. 

A republic has been well defined as “ an empire of law-s and 
not of men,” and John Adams, who quotes this definition with 
approval (Adams’s Works, vol. 4, p. 104), adds: 

That form of government which is "best contrived to secure an im¬ 
partial and exact execution of the laws is the best of republics. 

The recall contemplates not an “empire of law^s ” to be exe¬ 
cuted with impartiality and exactness, but an empire of men 
143G—10171 


28 


wlio piinisli not nccorcling to sonio fixod and dofinitoly prosciibod 
rule, but according to their undefined, unrestrained, and un¬ 
limited discretion, conceived, it may be, in prejudice and deliv¬ 
ered in careless ignorance of the facts, administered not in the 
sight of all men, but in the secrecy of the ballot box, where it 
can never be known whether the voter judged according to the 
poised and balanced scales of justice or struck with the knife 
of the assassin. 

It is sometimes said that if people can be trusted to elect and 
reelect officers with fairness they can be relied upon to admin¬ 
ister the recall with fairness. The two powers are essentially 
different. We elect one man and defeat another, not because 
the one defeated is bad or unfit, but because the man elected is 
preferred for reasons which may be wholly aside from the 
merits of the respective candidates. Such a defeat carries with 
it ordinarily no reflection upon the ability or the integrity of 
the defeated. But to recall an official is a declaration of his 
unfitness, and carries with it reproach and dishonor. When an 
official seeks reelection the people pass upon his record as a 
whole, not merely upon some isolated act. Under the recall he 
occupies the position of an accused defendant seeking to avoid 
condemnation, and the attention of the people is concentrated 
upon the particular acts complained of, and his record, taken as 
a whole, receives little consideration. The difference between 
being rejected at an election and being recalled is the difference 
between not receiving an invitation to enter at the front door 
and being kicked out of the back door in disgrace. The recall 
necessarily involves the exercise of judgment respecting the 
rightfulness or wrongfulness of official conduct. The whole 
genius of our institutions demands that before a decision of this 
character shall be effected there shall be an opportunity to con¬ 
front the accusers and to hear the accusation according to the 
settled and orderly methods of the law, and that judgment, after 
a full hearing, shall be rendered by an impartial tribunal. Any¬ 
thing less than this, whatever it may be called, is in essence 
nothing but lynch law. The people themselves will soon lose 
all regard for a representative who “ lives and moves and has 
his being ” in the fear of their spasmodic punishments. 

While I thoroughly disapprove of the initiative and the mod¬ 
ern referendum and the recall as applied to executive and legis¬ 
lative officers, I could well subordinate my judgment to that of 
the people of Arizona if they had not gone further and pro¬ 
vided that the recall should embrace the judiciary as well. 
The power to recall a judge who renders an unpopular judgment 
1436—10171 


29 


is to my mind so utterly subversive of the principles of good 
government that I can never get my own consent to withhold 
my condemnation and disapproval of it. 

The Senator from Oregon—not the father of the “ composite 
citizen,” but the junior Senator, Mr. Ciiambeblain —in his 
speech of April 17 last, asks: 

But as an abstract proposition, why should a judicial officer he inde¬ 
pendent of the wishes of his constituents? 

Ah, Mr. President, much of the vice and fallacy of the argu¬ 
ment for the right to recall judges rests in this assumption that 
the judge, like a Congressman or a legislator, represents a con¬ 
stituency. What is a constituent? He is a person for whom 
another acts. A constituent implies as a necessary corollary, a 
representative who speaks for him. A judge has no constitu¬ 
ents; he is only in a restricted sense a representative officer at 
all. The people who elect him can with propriety make known 
their wishes only through the laws which they enact. The judge 
is the mouthpiece of the laic. His constituents are the statutes 
duly made and provided. If his decisions are wrong, the remedy 
is to appeal to a higher court—not to the people. The scales of 
justice must hang level or there is an end of justice. The recall 
puts into the scale, upon one side or the other, in every case 
where strong public feeling exists, the artificially induced anx¬ 
iety of the judge for the retention of his place. Bound by all 
the sacred traditions of his office to decide impartially between 
the parties according to the law and the evidence, he begins the 
discharge of his high duties with a personal interest in his own 
decision. 

The judge represents no constituents, speaks for no policy 
save the public policy of the law. If he be not utterly for¬ 
sworn, he must at all hazards put the rights of a single indi¬ 
vidual above the wishes of all the people. He has no master 
but the compelling force of his own conscience. Every circum¬ 
stance which diminishes his independence and his courage, which 
closes his ears to the righteousness of the cause and opens 
them to the voice of clamor, makes for injustice. 

If charged with incompetency, dishonesty, or corruption, 
common fairness demands that he should be tried in the open 
before an impartial tribunal, where he may be heard, not with 
a limitation of 200 words upon his defense, but in full, and 
where he may face his accusers and test the truth of their 
accusations by those orderly methods of procedure which the 
experience of centuries has demonstrated are essential to the 
ascertainment of truth. But the recall institutes a tribunal 
1436—10171 


30 


where everybody decides and nobody is responsible; where at 
least 25 per cent of the membership have already, as the judge’s 
accusers, prejudged his case, and from whose arbitrary and 
unjust findings there is no appeal. In such a forum idle gossip 
and village scandal stand in the place of evidence; assertion 
takes the place of sworn testimony; and the foulest lie goes 
unchallenged bj^ the touchstone of cross-examination. The voter 
will make up his verdict of vindication or conviction under the 
illuminating radiance of the torchlight procession, in the calm, 
judicial atmosphere of the brass band and the drum corps, and 
upon the logical summing up of the spellbinder and the cam¬ 
paign quartet. 

Mr. President, I am not one of those who have become im¬ 
patient at the restraints and checks and safeguards of the rep¬ 
resentative form of government and the written Constitution. 
I am not one of those who would launch the ship of state, with 
every sail set, upon the wide sea of tossing waters—wdth all 
its unsounded depths and unknown shallows, with here a whirl¬ 
pool and there a half-submerged rock—without a chart or a com¬ 
pass or a rudder or an anchor, trusting alone to the merciful 
chance of wind and wave and the tumultuous efforts of an un¬ 
captained crew to preserve it from disaster. I disagree utterly 
with the distinguished Senator from Oklahoma [Mr. Owen], 
who told us a few days ago in that calm, judicial way of his, 
that the Constitution of the United States—for which some of 
us had conceived a rather high opinion—was all wrong; that 
it was not sufficiently democratic; that it was so drawn by 
Madison and those who were in the Constitutional Convention 
as to vest unfair power in the hands of the minority, and that 
this principle shows from one end of it to the other; that, 
among other things, to his deep regret, he had been unable to 
discover in that worn and antiquated document any provision 
for the recall of the Supreme Court of the United States. 
There are some individuals in this country who ought to be 
prosecuted for monopolizing so much of the wisdom that a dis¬ 
criminating Providence intended should be distributed in mod¬ 
est proportions among a somewhat extended number of people. 
I do not mean to say that the Senator from Oklahoma is one 
of these, but I feel sure that it was a distinct misfortune that 
he did not make his appearance at a date sufficiently early to 
give the fathers who framed the Constitution the benefit of his 
counsel and advice. I am not certain that in that event the 
Constitution would have been better, but I am sure it would 
have been longer than it is. At any rate, it is a great pity that 
143G—10171 




31 


the Senator from Oklahoma could not have been privileged to 
point out at that time the high-handed disregard of its framers 
for the rights of the people which he points out with such con¬ 
clusive finality now. 

For a century and a quarter the great names of Washington, 
who was the president of the convention; of Benjamin Frank¬ 
lin, Alexander Hamilton, Bobert Morris, James Madison, James 
Wilson, Charles Pinckney, Rufus King, and all the others of the 
Immortal list, have occupied a shrine of glory in the hearts of 
the misguided multitude as the framers of a Constitution which, 
instead of being undemocratic “ from one end of it to the other,” 
is inspired “ from one end of it to the other ” with the thought 
that the day when the king commands and the people obey has 
gone, and that the new day has risen when the people shall com¬ 
mand and the king obey. 

But we have all been mistaken. The fathers, in framing the 
Constitution, were unpatriotic and undemocratic. They were 
engaged in turning over an amiable majority to the mercy of a 
ferocious minority; in setting up a government that could not 
be overturned by every breath of popular emotion; in creating 
a responsible and independent judiciary; and in other similar 
unholy and reprehensible enterprises, for which, I have no 
doubt, the enlightened “ composite ” citizenship of Oklahoma 
would, if they had the opportunity, commit them to the county 
jail as a gang of nonprogressive, standpat aristocrats. 

Against these criticisms of the Constitution by this American 
Senator I would put the strong words of the great English com¬ 
moner, who described it as “ the most wonderful work ever 
struck off at a given time by the brain and purpose of man.” 
Against the petulant view of this American Senator, that this 
learned, courageous, and patriotic court should be made re¬ 
sponsive, by means of the recall, to the changing moods of the 
majority, I would set the vigorous statement of another Eng¬ 
lishman, Mr. Bryce, who said: 

The Supreme Court is the liviug voice of the Constitution ; that is, 
of the will of the people expressed in the fundamental law they have 
enacted. It is, therefore, as some one has said, the conscience of the 
people, who have resolved to restrain themselves from hasty or unjust 
action by placing their representatives under the restriction of a per¬ 
manent law. It is the guaranty of the minority, who, when threatened 
by the impatient vehemence of a majority, can appeal to this perma¬ 
nent law, finding the interpreter and enforcer thereof in a court set 
high above the assaults of faction. 

To discharge these momentous functions the court must be stable, 
even as the Constitution is stable. Its spirit and tone must be that 
of the people at their best moments. It must resist them the more 
1436—10171 





32 


firmly, the more vehement they are. Intrenched behind impregnable 
ramparts, it must be able to defy at once the open attacks of the other 
departments of the Government and the more dangerous, because im¬ 
palpable, seductions of popular sentiment. 

Against all sucli wild and visionary demands for the popular 
recall of the judges I would print in letters of living light the 
strong words of Chief Justice Marshall: 

The judicial department comes home, in its effects, to every man’s 
fireside ; it passes on his property, his reputation, his life, his all. Is 
it not to the last degree important that he should be rendered perfectly 
and completely independent, with nothing to influence or control him 
lut Ood and his conscience? 

Sir, I hope I am not given to overextravagant statement, 
but I declare my solemn conviction that the moment a provision 
for the recall of the judges of the Supreme Court shall be writ¬ 
ten into the Federal Constitution, that moment will mark the 
beginning of the downfall of the Republic and the destruction 
of the free institutions of the American people. 

And now, Mr. President, what is to be the next step in the 
onward march? Will it be to apply the referendum to judicial 
matters? Why not? If laws can be made by the simple formula 
of counting heads at the ballot box, why not laws construed 
and questions of fact unraveled by the same infallible method? 

Such a device would seem to be the fitting complement of the 
recall. When a court is confronted with a particularly per¬ 
plexing case in which there is great popular interest and warm 
public feeling, where the precedents of the law and the senti¬ 
ment of the people are both conflicting, and the poor judge is 
driven to his wits’ end to harmonize the one and accurately 
interpret the other, instead of putting him to the uncom¬ 
fortable alternative of rendering a judgment which, however 
satisfactory to himself, may not meet the preponderating fancy 
of the multitude, surely he might have the benefit of the ballot- 
box opinion be/ore instead of after he has decided. This may 
result in more or less disappointment to the losing litigant; 
it ioill result in a good deal of uncertainty respecting the law, 
but the judge will be saved and the power of the p^ople 
vindicated. 

Sir, the suggestion is not so fanciful as it may at first appear. 
In the wild witches’ dance which is only just beginning the 
nimble feet of the “ composite citizen ” seem destined to cut 
livelier capers and more bewildering pirouettes than even this. 
An enterprising district attorney in southern California has 
already proposed to submit to the taxpayers of the county, if 
143G—10171 


a way can be found, the question as to whether he shall further 
prosecute a case of arson in which the jury has already twice 
disagreed, upon which proposition the editor of the San Diego 
Herald comments in the following deplorably heterodox 
language: 

THE EEFEllENDUM. 

District Attorney Utley, in the Schoneck case, has made a wonderful 
proposition to the people of San Diego. After admitting his inability 
to secure a conviction, he asks the people to instruct him as to his 
duty. This sounds more like the utterance of a cunning politician than 
the words of a man. 

If Schoneck is innocent, the district attorney should not try to con¬ 
vict him. If he is guilty and the evidence is procurable, the case 
should he fought to a finish at any cost. If the district attorney feels 
that the man is guilty, hut that it is impossible to procure evidence to 
convict, then he will do his duty and save the taxpayers much cost by 
dismissing the case. It is a matter wholly in the hands of the district 
attornej”, and a man of caliber in that office would use his own judg¬ 
ment in the matter. 

It may seem like a delicate compliment to refer the matter to the 
people, but it really looks cowardly. Of course, an official who has made 
frequent blunders which the people are not slow to criticize may be 
overly sensitive and therefore may take such a course, thinking it may 
satisfy the public. 

Those who are so intemperately appealing to the people to 
take over the direct management of their government, with its 
multiplicity of detail and difficulty, the successful operation of 
which demands concentration of effort and thoroughness of 
application, are preparing the way for future mischief. They 
are advocating a political creed alluring to the imagination, hut 
utterly impossible of silccessful realization, and which, if 
adopted, will lead us more and more into the domain of the 
impracticable, with political chaos or political despotism as the 
ultimate result. It is the old contest between idealism and 
stubborn, matter-of-fact reality. It is the story of the philoso¬ 
pher’s stone over again—the dream of transmuting all the 
metals into gold—the hunt for the master key that will open 
all locks, however different in size and shape—the problem of 
fitting square pegs into round holes—the puzzle of how to eat 
one’s cake and have it—the search for the chimera of perpetual 
motion—the quest for the mythical pot of gold at the foot of 
the rainbow—and all the other impossible undertakings which 
have vexed men’s souls and turned their brains and filled the 
lunatic asylums since mankind was divided into those who see 
facts and those who see visions. FinalIj’, this latest delusion 
of having everybody drive the horses and everybody ride in the 
coach at the same time must share the fate of all the others, 
1430—10171-3 


34 


for it is now as it has always been, that the pursuit of the un¬ 
attainable is the most profitless of human occupations. 

Under the initiative and referendum the people will occa¬ 
sionally get a law they want which the legislature will not 
not pass; under the recall they will occasionally get rid of a 
man who never should have been elected; but under the system 
they will in the end get legislators that no thoughtful people 
ought to have and judges whom no free people should be satis¬ 
fied with. The legislators will be driven to yield their own 
function of deliberation and their own independent judgment 
as to what is wisest and best and become mere recording agents. 
The executive officers will become less and less self-reliant men 
and more and more automatic machines, until some day, in the 
face of some great crisis, the people will awake to the af¬ 
frighted realization that their government is in the hands of 
men who have lost the courage and the wisdom to act upon 
their own responsibility at all. 

Mr. President, in the main and in the long run changes which 
come by the gradual and orderly processes of evolution are 
better and far more enduring than those brought about by the 
spasmodic methods of revolution. Experience is a safer guide 
than prediction. The tree is known hy its fruits rather than 
by its blossoms, for sometimes the fairest blooms, like the fair¬ 
est promises, produce no fruit at all. The rules of government 
that have been tried, that have been rounded into shape by 
j’ears of practical use, that have stood the strain and pres¬ 
sure from every direction, are not to be lightly cast aside in 
order that we may put high-sounding experiment in their 
place. The strength and the glory of the common law, which is 
but the crystallized common sense of the clear-thinking English 
race expressed in definite form, is that it has been gradually 
developed by hundreds of slow years of application to the 
diverse and changing needs of society, until it has become fitted 
and molded and adjusted to all the conditions of life. And 
so, sir, with the great principles of our Government. Like the 
common law, they are a growth, not an invention. Year by 
year they have developed in enduring strength, striking their 
roots deeper and deeper into the intimate life of the people. 
They have withstood the specious opposition of the doctrinaire 
and the theorist, as well as the open shock of armed conflict. 
The preservation, the renewal, the strengthening of the old 
faith in their efficiency and virtue I regard as essential to our 
continued development along sane and symmetrical lines. 

1436—10171 



35 


If the visionary and the dreamer, the agitator and the dema¬ 
gogue, could succeed in tearing them from the stately edifice of 
constitutional government, which, builded by the wise and lov¬ 
ing hands of the fathers and cemented by the blood of the Civil 
War, has proven the sure refuge and shelter of all our people 
throughout the j^ears in time of stress and trial, no man can 
foresee what miserable and inadequate makeshifts might be 
set in their place. Mr. President, I look with grave apprehen¬ 
sion upon the present-day tendency to overturn, uproot, and 
destroy these vital and fundamental principles of representa¬ 
tive governmeiit under which we have made and are making 
the most wonderful moral, social, and material advancement 
mankind has ever beheld. But, sir, I preach no gospel of de¬ 
spair. My sure confidence rests in the saving grace of the sober 
second thought of the American people, for, in the last analy¬ 
sis, we are a practical and a conservative people, sometimes, 
it is true, dreaming with our heads in the clouds, but always 
waking to the realizing sense that we must walk with our 
feet upon the earth. Sometimes the haunting spell of the dark¬ 
ness is upon us, but in the end the night goes, “ the dawn comes, 
the cock crows, the ghost vanishes ”; we open our eyes and 
all the uneasy and terrifying visions disappear in the light 
which fills the east with the glowing promise of another 
morning. 

143G—10171 

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